- (1.) SHRIMATI Rajni Devi, the plaintiff filed Suit No. 739 of 1968 for ejectment, recovery of arrears of rent and damages for use and occupation against Ishwari Prasad and Ghanshyam defendants 1 and 2. On the enforcement of U.P. Act No. 13 of 1972 the suit was transferred to the Judge Small Cause Court side on 25-1-1973. It, however, appears that as Ghanshyam Das was dead a substitution application had been filed by the plaintiff for bringing his heirs on record. On 9th April, 1974 the substitution application was allowed and 1-8-1974 was fixed for final hearing. No date for hearing of the suit was fixed between 15- 9-1972 and 1-8-1974. On 1-8-1974 the suit was adjourned to 19-9-1974. On 19-9-1974 an application was moved by the plaintiff praying that since the defendants had not deposited admitted rent and damages as required under O.XV R.5 Civil P.C., the defence was liable to be struck out. The defendants filed their objection stating that the arrears had already been paid under 7-C of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 under the orders of Court up-to-date and, therefore, the defence could not be struck off.
(2.) THE Judge, Small Cause Court held that the deposit made under Section 7-C for the period till 30th Sept., 1972 was justified but found that after the enforcement of U.P. Act No. 37 of 1972, the deposit should have been made in the present suit and, as such, the rent deposited in the proceedings under Section 7-C could not save the consequence of O.XV R.5, C.P.C. In the revision the order of the Judge, Small Cause Court, was maintained. Hence this revision. Before dealing with the points urged, it will be helpful to bifurcate the various periods for which the rent and damages had to be paid by the defendants. It may be noted here that under O.XV, R.5, C.P.C. a defendant is liable to deposit the entire amount due. The periods can be divided as follows :- From 1967 to 30-9-1972- deposited u/s. 7-C 1st Oct. 72 to April, 1974- deposited u/s. 7-C 1st May, 74 to July, 1974- deposited in present suit on 1-8-1974. Aug. and Sept., 1874- deposited on 5-9-74 and on 1-10-1974 respectively in the present suit. It may be recapitulated here that the defence had been struck off on the ground of non-deposit of damages from 1st Oct., 1972 to April, 1974. For the period before 30th Sept., 1972, the finding of the Judge Small Causes Court was that the defendants were justified in depositing the rent under S.7-C and, as such, they could not be called upon to deposit the same in the present suit. The period from 1st Oct., 1972 to April, 1974, if excluded for the time being, the period left is from May, 1974 to Sept., 1974. The rent for the months of Aug. and Sept., 1974 had been deposited in time. So far as the rent for the months May to July, 1974 is concerned, the deposit was made on 1-10-1974. While making the deposit on 1-10-1974 the defendants had made a representation for condonation of default or delay on the ground that since they had made the deposits in the proceedings under Section 7-C under a legal advice, the bona fide mistake could be condoned. This had been accepted by the Judge Small Causes. He held that the defendants had reasonable cause for not having deposited the rent damages for the months May, 1974 to July, 1974. To this extent the representation was accepted.
(3.) THE Judge, Small Causes, however, did not accept the representation for the period from 30th Sept., 1972 to April, 1974. THE ground given was that as the rent for this period had not been deposited in the present suit despite moving of an application by the plaintiff for striking off the defence, the delay could not be condoned. The question, therefore, is only whether the court committed an error in not accepting the representation of the defendants also for the period for 30th Sept., 1972, to April, 1974. Negativing the arguments of the defendant's learned counsel the Additional District Judge found that as the representation had not accompanied the security, the representation could not be accepted. The point, therefore, that remains to be examined is whether the representation could be dismissed because the security was not furnished simultaneously with or was not accompanying the application filed for representation.;